PER: 2013 Volume 16 No 5
Contents
30 December 2013
Articles
- What intellectual property lawyers can learn from Barbra Streisand, Sepp Blatter, and the "Coca-Cola cry-baby": Dealing with "trademark bullying" in South Africa / Louw, AM
- Yet another call for a greater role for good faith in the South African law of contract: can we banish the law of the jungle, while avoiding the elephant in the room? / Louw, AM
- A critical assessment of the minimum age convention 138 of 1973 and the worst forms of child labour convention 182 of 1999 / Mavunga, RA
- Limitation of socio-economic rights in the 2010 Kenyan constitution: a proposal for the adoption of a proportionality approach in the judicial adjudication of socio-economic rights disputes / Orago, NW
- A critical investigation of the relevance and potential of IDPs as a local governance instrument for pursuing social justice in South Africa / Fuo, ON
- Achieving equity in the fishing industry: the fate of informal fishers in the context of the policy for the small-scale fisheries sector in South Africa / Young, M
- The prosecution of incitement to genocide in South Africa / Van der Merwe, HJ
- Reflections on judicial views of Ubuntu / Himonga, C; Taylor, M & Pope, A
Notes
- Reforming the multilateral decision-making mechanism of the WTO: what is the role of emerging economies? / Saurombe, A & Nkabinde, HIV
- Creating a servitude to solve an encroachment dispute: a solution or creating another problem? / Boggenpoel, ZT
- "Originality" and "reproduction" in copyright law with special reference to photographs / Harms, LTC
- Unpacking the right to plain and understandable language in the consumer protection act 68 of 2008 / Stoop, PN & Chürr, C
- A customary right to fish when fish are sparse: managing conflicting claims between customary rights and environmental rights / Feris, L
- Race as/and the trace of the ghost: jurisprudential escapism, horizontal anxiety and the right to be racist in BoE trust limited / Modiri, JM
Editorial
The last issue of 2013 consists of fourteen contributions dealing with a potpourri of topics. The first two articles are both by the same author. In the first one, André Louw addresses the recent, sometimes deplorable conduct of intellectual property (or IP) lawyers, and in the second one, André Louw explores the proper role and meaning of good faith (or bona fides) in contract law, and the approach of our courts to the application of this principle in individual cases involving claims of unfairness and the like. The third article, by Rufaro Mavunga, critically assesses the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999. Nicholas Orago, in the fourth article, discusses socio-economic rights in Kenya and proposes that if the entrenched socio-economic rights are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of socio-economic rights disputes. The fifth article, by Oliver Fuo, explores and critically investigates the relevance and potential of integrated development planning in contributing towards the achievement of social justice in South Africa. Next, Michaela Young discusses the fate of informal fishers in the context of the Policy for the Small-Scale Fisheries Sector in South Africa. The second-last article, by Hermanus van der Merwe, provides a historical and teleological overview of the crime of direct and public incitement to commit genocide under international law, as well as the definitional elements thereof as interpreted and applied by the International Criminal Tribunal for Rwanda, before he continues to examine it in contemporary South African law. The last article, by Chuma Himonga, Max Taylor and Anne Pope, explores the scope and content of the ever elusive concept of ubuntu, as pronounced on by the judiciary in various cases, and demonstrates that its fundamental elements of respect, communalism, conciliation and inclusiveness enhance the constitutional interpretation landscape.
The first note in this issue, co-authored by Amos Saurombe and Happy Nkabinde, focuses on the future of global economic governance in the light of the current state of multilateral trade negotiations. The authors provide recommendations on how reform of the multilateral decision-making structures should focus on promoting the interests of developing countries that have historically been marginalised, especially those making up BRICS. In the second note, Zsa-Zsa Boggenpoel discusses the effect of the decision, Roseveare v Katmer Roseveare v Katmer, Katmer v Roseveare 2013 ZAGPJHC 18, which has opened the door for courts to create servitudes in instances where encroachments are left intact based on policy reasons. Thirdly, Louis Harms, a judge emeritus of the Supreme Court of Appeal, gives his views on the meaning of the concepts "originality" and "reproduction" in copyright law with special reference to photographs. Philip Stoop and Crizell Chürr, in the fourth note, discuss the scope and application of the Consumer Protection Act 68 of 2008, which came into effect on 1 April 2011. Loretta Feris considers in the firth note the potential conflicts that may arise between customary rights and environmental rights in the face of dwindling marine resources in the context of the unreported judgment of S v Gongqose Case No. E382/10. The last note, by Joel Modiri, draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited 2013 3 SA 236 (SCA). The author argues that certain aspects of the Court stand in tension with the project of transformative constitutionalism, which prevents the coming into being of a more critical race jurisprudence for post-apartheid South Africa.
Editor: Professor Christa Rautenbach / Edition Editor: Professor Anél du Plessis
Recent Submissions
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Race as/and the trace of the ghost: jurisprudential escapism, horizontal anxiety and the right to be racist in BoE trust limited
(2013)This contribution draws on critical race theory and critical legal theory in order to read and critique the Supreme Court of Appeal judgment of Erasmus AJA in BoE Trust Limited 2013 3 SA 236 (SCA). It will specifically ... -
A customary right to fish when fish are sparse: managing conflicting claims between customary rights and environmental rights
(2013)This contribution considers the potential conflicts that may arise between customary rights and environmental rights in the face of dwindling marine resources. It sets the scene by reflecting on some of the common themes ... -
Unpacking the right to plain and understandable language in the consumer protection act 68 of 2008
(2013)The Consumer Protection Act 68 of 2008 came into effect on 1 April 2011. The purpose of this Act is, among other things, to promote fairness, openness and respectable business practice between the suppliers of goods or ... -
"Originality" and "reproduction" in copyright law with special reference to photographs
(2013)Turning to lessons from foreign jurisdictions, this note explores from a copyright perspective the fact that photographs are produced mechanically and more often than not without any effort or mental input. A minute number ... -
Creating a servitude to solve an encroachment dispute: a solution or creating another problem?
(2013)The main focus of this note is the case of Roseveare v Katmer, Katmer v Roseveare 2013 ZAGPJHC 18, which provides an interesting (though possibly constitutionally problematic) perspective to the encroachment problem. The ... -
Reforming the multilateral decision-making mechanism of the WTO: what is the role of emerging economies?
(2013)The paper focuses on the future of global economic governance in the light of the current state of multilateral trade negotiations. The aim is to analyse identified key historical issues at the heart of the decision-making ... -
Reflections on judicial views of Ubuntu
(2013)Since S v Makwanyane, ubuntu has become an integral part of the constitutional values and principles that inform interpretation of the Bill of Rights and other areas of law. In particular, a restorative justice theme has ... -
The prosecution of incitement to genocide in South Africa
(2013)The inchoate crime of direct and public incitement to commit genocide was first recognised under the Convention on the Prevention and Punishment of the Crime of Genocide (1948). The creation of the crime was a direct result ... -
Achieving equity in the fishing industry: the fate of informal fishers in the context of the policy for the small-scale fisheries sector in South Africa
(2013)The implementation of the Marine Living Resources Act 18 of 1998 which governs fisheries management in South Africa is guided by a series of objectives. Chief amongst these are the need to ensure resource sustainability, ... -
A critical investigation of the relevance and potential of IDPs as a local governance instrument for pursuing social justice in South Africa
(2013)Unlike the situation in the past, when local government’s role was limited to service delivery, local government is now constitutionally mandated to play an expanded developmental role. As a “co-responsible” sphere of ... -
Limitation of socio-economic rights in the 2010 Kenyan constitution: a proposal for the adoption of a proportionality approach in the judicial adjudication of socio-economic rights disputes
(2013)On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 ... -
A critical assessment of the minimum age convention 138 of 1973 and the worst forms of child labour convention 182 of 1999
(2013)The International Labour Organisation (the ILO) has regulated child labour through the Minimum Age Convention and the Worst Forms of Child Labour Convention. Such conventions aim at the reduction and eventual elimination ... -
Yet another call for a greater role for good faith in the South African law of contract: Can we banish the law of the jungle, while avoiding the elephant in the room?
(2013)This article examines the current approach of the South African courts to the role of good faith or bona fides in contracts, as well as the courts’ stated reasons for this approach. The article specifically examines how ... -
What intellectual property lawyers can learn from Barbra Streisand, Sepp Blatter, and the "Coca-Cola cry-baby": Dealing with "trademark bullying" in South Africa
(2013)This article suggests some pause for reflection amongst intellectual property lawyers, and for serious consideration of the words of an internationally-renowned IP law expert: "Possessing a right does not mean that it is ...